Public Trust and Public Nuisance:
Common Law Peas in a Pod?
Albert C. Lin*
Public trust and public nuisance are doctrines with contrasting origins:
the public trust doctrine is rooted in property law, whereas public
nuisance is rooted in tort law. Yet, as common law doctrines in an age
dominated by statutes and regulations, public trust and public nuisance
also have much in common. In recent years, advocates have advanced both
theories with growing frequency as means of protecting the environment
and natural resources. A comparison of these doctrines, their scope, and
purposes reveals instructive similarities and differences that can inform
their application to climate change, biodiversity protection, scarce water
supplies, and other contemporary challenges.
TABLE OF CONTENTS
INTRODUCTION ................................................................................. 1077
I. PUBLIC TRUST AND PUBLIC NUISANCE DOCTRINES:
SIMILARITIES ........................................................................... 1078
A. Public Trust and Public Nuisance Doctrines as
Communitarian Doctrines ............................................... 1079
B. Public Trust and Public Nuisance Doctrines as Flexible
Common Law Tools ......................................................... 1081
C. Public Trust and Public Nuisance Doctrines as Responses
to Political Failure........................................................... 1084
II. PUBLIC TRUST AND PUBLIC NUISANCE DOCTRINES:
DIFFERENCES.......................................................................... 1088
A. Scope ............................................................................... 1088
B. Function .......................................................................... 1091
*
Copyright © 2012 Albert C. Lin. Professor of Law, University of California,
Davis, School of Law. Thanks to the editors of the UC Davis Law Review and
Professor Rick Frank for their work in organizing this symposium, and to Dean Kevin
Johnson, Associate Dean Vik Amar, and the UC Davis School of Law for financial
support for this project.
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C. Legal Foundation............................................................. 1093
CONCLUSION..................................................................................... 1096
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INTRODUCTION
The public trust doctrine provides that certain resources inherently
belong to the people and are to be administered by the state for their
benefit.1 Traditionally, the doctrine applied to tidal and navigable
waters and the lands beneath them.2 In recent decades, however, some
courts have held other resources, such as park land and dry sand
beaches, to fall within the public trust doctrine’s reach as well.3 The
public trust doctrine is a doctrine of property law: described as “a kind
of inherent easement for certain public purposes,” it declares certain
resources to be subject to inalienable public rights, even if those
resources are privately owned.4 The public trust doctrine can serve as
a weapon to thwart actions by the government or private parties that
violate public trust purposes, or it can function as a shield to protect
the government against claims that its actions have taken private
property and, thus, require compensation.5
The public nuisance doctrine protects the public against
unreasonable and substantial interference with a public right.6
Originating in common law criminal prosecutions, public nuisance is
more commonly a source of civil tort liability today.7 Public nuisance
is no ordinary tort, however, as its invocation — typically by public
officials8 — involves an exercise of the state’s police power.9 Whereas
1
Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective
Judicial Intervention, 68 MICH. L. REV. 471, 475 (1970) [hereinafter Public Trust
Doctrine in Natural Resource Law].
2
WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW: AIR AND WATER § 2.20, at 158-59
(1986).
3
See Alexandra B. Klass, Modern Public Trust Principles: Recognizing Rights and
Integrating Standards, 82 NOTRE DAME L. REV. 699, 707-08 (2006).
4
Carol M. Rose, Joseph Sax and the Idea of the Public Trust, 25 ECOLOGY L.Q. 351,
351 (1998); see also Klass, supra note 3, at 702.
5
Richard J. Lazarus, Changing Conceptions of Property and Sovereignty in Natural
Resources: Questioning the Public Trust Doctrine, 71 IOWA L. REV. 631, 645-46 (1986)
[hereinafter Questioning the Public Trust Doctrine]; Klass, supra note 3, at 727-42.
6
See RESTATEMENT (SECOND) OF TORTS § 821B(1) & cmt. a (1979); DAN B. DOBBS,
THE LAW OF TORTS 1334 (2000) (defining public nuisance as “a substantial and
unreasonable interference with a right held in common by the general public, in use of
public facilities, in health, safety, and convenience”); Donald G. Gifford, Public
Nuisance as a Mass Products Liability Tort, 71 U. CIN. L. REV. 741, 813-30 (2003)
[hereinafter Public Nuisance] (outlining “fundamental principles” governing public
nuisance).
7
See Gifford, Public Nuisance, supra note 6, at 790-809 (providing a historical
account of the development of public nuisance doctrine).
8
See id. at 814.
9
See Albert C. Lin, Deciphering the Chemical Soup: Using Public Nuisance to
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private nuisance actions require interference with the enjoyment of
land, public nuisance protects a broad range of rights in health, safety,
and comfort that are not necessarily tied to land or a particular
resource.10 The rights that may be protected by public nuisance can
overlap with those subject to the public trust doctrine; courts have
deemed obstructed waterways and polluted water, for example, to be
public nuisances.11
Commentators have characterized the relationship between the
doctrines of public trust and public nuisance in various ways. William
Rodgers once described public nuisance as an “inland version of
public trust doctrine.”12 Allan Kanner and Mary Ziegler suggest that
the public trust doctrine protects “natural resources held for all,”
whereas the public nuisance doctrine “protects those held by no
one.”13 These summary characterizations, while acknowledging basic
differences between the two, recognize that the doctrines share an
underlying goal of protecting communal interests in the environment
and natural resources. The doctrines’ differences, however, are
relevant in analyzing how the doctrines might apply to various
environmental challenges.
I.
PUBLIC TRUST AND PUBLIC NUISANCE DOCTRINES: SIMILARITIES
The public trust and public nuisance doctrines occupy similar
positions within our legal architecture. Namely, they protect collective
interests against the excesses of private activity, operating flexibly as
common law backstops to political failures.
Compel Chemical Testing, 85 NOTRE DAME L. REV. 955, 983-84 (2010).
10
See DOBBS, supra note 6, at 1335.
11
See Rhode Island v. Lead Indus. Ass’n, 951 A.2d 428, 453 (R.I. 2008) (describing
public right); Gifford, Public Nuisance, supra note 6, at 815 (describing fact patterns
constituting public nuisance under common law); see also CAL. CIV. CODE § 3479
(West 1997) (defining a nuisance as “[a]nything which is injurious to health . . . or is
indecent or offensive to the senses, or an obstruction to the free use of property, so as
to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs
the free passage or use, in the customary manner, of any navigable lake, or river, bay,
stream, canal, or basin”).
12
See Carter H. Strickland, Jr., The Scope of Authority of Natural Resources
Trustees, 20 COLUM. J. ENVTL. L. 301, 315 (1995) (quoting WILLIAM H. RODGERS, JR.,
ENVIRONMENTAL LAW § 2.16, at 173 (1977)).
13
Allan Kanner & Mary E. Ziegler, Understanding and Protecting Natural
Resources, 17 DUKE ENVTL. L. & POL’Y F. 119, 128 (2006).
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A. Public Trust and Public Nuisance Doctrines as Communitarian
Doctrines
It is no accident that the public trust and public nuisance doctrines
both include the word “public” in their titles, for these doctrines are
steeped in communitarian values. These doctrines stand as bulwarks
of society’s broader interests within a political, legal, and cultural
framework that jealously protects private property rights and
individuals’ freedom of action. They declare specifically that private
property cannot be used in complete disregard of the interests of
others and, more generally, that individual rights are necessarily
bounded in a civil society.
The public trust doctrine, as Barton Thompson explains, is primarily
concerned with “privatization of property and resources [that] has
gone too far.”14 Modern liberal societies protect private property
ownership out of recognition of a fundamental connection between
private property and individual liberty.15 The underlying rationale for
the public trust doctrine is that certain resources are so essential to
social well-being that they ought not to be privatized, notwithstanding
this connection.16 In particular, ensuring public access to oceans and
waterways has been vital to protecting commerce, navigation, and
fishing since ancient times.17 Indeed, the public trust doctrine, by
preserving public rights to certain critical resources, can actually
provide support for private property regimes.18 Ensuring that
waterways are open to all, for instance, facilitates trade and economic
activity that might be impossible under a system of more absolute
private ownership and control.19 Of course, the purposes of the public
trust doctrine are not limited to commercial objectives: public trust
concerns have come to include recreational and ecological purposes as
well.20 These broader objectives underscore the fundamental premise
that the state holds public trust resources as a trustee for the general
14
Barton H. Thompson, The Public Trust Doctrine: A Conservative Reconstruction &
Defense, 15 SOUTHEASTERN ENVTL. L.J. 47, 59 (2006).
15
See JOSEPH SINGER, ENTITLEMENT: THE PARADOXES OF PROPERTY 23 (2000); see also
Eric T. Freyfogle, Property and Liberty, 34 HARV. ENVTL. L. REV. 75 (2010) (contending
that private property regimes can both promote and restrict liberty).
16
Sax, Public Trust Doctrine in Natural Resource Law, supra note 1, at 484.
17
See Thompson, supra note 14, at 67.
18
Id. at 59.
19
Id. at 62-63.
20
See Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709, 719 (Cal. 1983).
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public, and as trustee, the state has a duty to act in the interest of
current and future generations.21
The public nuisance doctrine likewise serves as an instrument for
protecting collective interests. In contrast to private nuisance doctrine,
which seeks to resolve conflicts between individual rights and
interests, the public nuisance doctrine directly governs activity that
interferes with public rights. More than a mere aggregation of private
rights,22 public rights are distinct from the “individual right that
everyone has not to be assaulted or defamed or defrauded or
negligently injured.”23 “Collective in nature” and “common to all
members of the general public,”24 public rights include common law
rights in unobstructed highways and waterways and the right to
unpolluted air and water,25 as well as rights identified by statute.26 The
public nuisance doctrine constrains individuals from using private
property or taking other actions that interfere with these rights in a
substantial way.27
The doctrines of public trust and public nuisance share a common
goal of safeguarding community interests. With the increasing
recognition of resource conflicts and environmental problems,
community interests have come to include protection of the
environment and natural resources. The role of the doctrines in
safeguarding such interests is poised to grow as climate change
becomes more severe, water conflicts worsen, and fisheries continue to
21
Hope M. Babcock, The Public Trust Doctrine: What a Tall Tale They Tell, 61 S.C.
L. REV. 393, 408 (2009).
22
See Rhode Island v. Lead Indus. Ass’n, 951 A.2d 428, 448 (R.I. 2008); Gifford,
Public Nuisance, supra note 6, at 817. But cf. RESTATEMENT (SECOND) OF TORTS § 821B
cmt. g (1979) (noting that “no public right as such need be involved” in those states
where public nuisance is defined to include interference with “any considerable
number of persons”).
23
RESTATEMENT (SECOND) OF TORTS § 821B cmt. g (1979).
24
Id.
25
See Lead Indus. Ass’n, 951 A.2d at 453 (describing public right); DOBBS, supra
note 6, at 1335; Gifford, Public Nuisance, supra note 6, at 815 (describing fact patterns
constituting public nuisance under common law).
26
See, e.g., CAL. CIV. CODE §§ 3479, 3480 (West 2010) (defining nuisance as
“[a]nything which is injurious to health, . . . or is indecent or offensive to the senses,
or an obstruction to the free use of property, so as to interfere with the comfortable
enjoyment of life or property, or unlawfully obstructs the free passage or use, in the
customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any
public park, square, street, or highway” and public nuisance as a nuisance that “affects
at the same time an entire community or neighborhood, or any considerable number
of persons”).
27
See sources cited supra note 6.
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decline. Both doctrines, for instance, have been invoked in the battle
against climate change.28 It is worth keeping in mind, however, that
neither doctrine offers a comprehensive solution to environmental
challenges. The interests protected by the doctrines are wholly
anthropocentric, not ecocentric, and primarily involve the use of
environmental amenities. Ultimately, the doctrines presume the
existence of strong private property regimes and, thus, are unlikely to
catalyze a reconceptualization of humanity’s relationship with nature.
Nevertheless, the doctrines are important common law avenues for
balancing private and public interests in the environment.29
B. Public Trust and Public Nuisance Doctrines as Flexible Common Law
Tools
Notwithstanding their ancient lineage, the public trust and public
nuisance doctrines are relevant even in an age of statutory dominance.
Both doctrines have sufficient flexibility to play a role in addressing
contemporary concerns.
The public trust doctrine’s origins lie in Roman law, which
recognized communal rights in the air and waters, at least as an
abstract ideal.30 The geographical reach of the doctrine has expanded
slowly with time,31 but public trust cases have consistently reflected
three basic concerns as identified by Joseph Sax, whose
groundbreaking 1970 article revitalized the modern public trust
doctrine. First, “certain interests are so intrinsically important to every
citizen that their free availability tends to mark the society as one of
citizens rather than of serfs.”32 Second, “certain interests are so
particularly the gifts of nature’s bounty that they ought to be reserved
28
See Mary Christina Wood, Advancing the Sovereign Trust of Government to
Safeguard the Environment for Present and Future Generations (Part I): Ecological
Realism and the Need for a Paradigm Shift, 39 ENVTL. L. 43, 83-87 (2009) (advocating
application of public trust to climate change); Felicity Barringer, Suit Accuses U.S.
Government of Failing to Protect Earth for Generations Unborn, N.Y. TIMES, May 4,
2011, at A22 (reporting on filing of climate change lawsuits against federal and state
governments based on public trust doctrine); infra note 63 and accompanying text
(citing public nuisance climate change cases).
29
See RESTATEMENT (SECOND) OF TORTS § 821B cmt. e (1979) (explaining that
public nuisance element of “unreasonable interference” weighs the gravity of the harm
against the utility of the conduct); Thompson, supra note 14, at 64.
30
Lazarus, Questioning the Public Trust Doctrine, supra note 5, at 633-34.
31
See Klass, supra note 3, at 707-08; Lazarus, Questioning the Public Trust Doctrine,
supra note 5, at 647-50.
32
Sax, Public Trust Doctrine in Natural Resource Law, supra note 1, at 484.
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for the whole of the populace.”33 Third, “certain uses have a peculiarly
public nature that makes their adaptation to private use
inappropriate.”34 These core concerns of the public trust doctrine are
timeless. The doctrine retains vitality and appeal, even as the specific
interests meriting public trust protection — navigation, commerce,
recreation, or otherwise — or the particular uses that those interests
implicate, might vary with time. In a world that is increasingly
dominated by human activity, the public trust doctrine serves as a
reminder that human flourishing is contingent on the health and
accessibility of the natural world. The incorporation of the doctrine
into constitutional or statutory provisions in a number of states35
reflects recognition of our dependence on the natural world, as well as
the need for public trust interests to reflect contemporary societal
concerns.
The doctrine of public nuisance has similarly demonstrated
continuing relevance and adaptability over time. Public nuisance
originated in common law criminal prosecutions by the King to
address encroachments upon the royal domain.36 Described by one
court as the “dust bin [] of the law,”37 public nuisance may encompass
a wide variety of conduct ranging from actions harmful to public
health to behavior deemed damaging to public morals.38 Litigants have
asserted public nuisance claims successfully in response to various
environmental problems, including dust, smoke, noise, odors, and
hazardous chemical releases.39 At the root of these varying factual
33
Id. at 484.
Id. at 485.
35
See Klass, supra note 3, at 714-27.
36
Gifford, Public Nuisance, supra note 6, at 790-99.
37
Awad v. McColgan, 98 N.W.2d 571, 573 (Mich. 1959) (characterizing nuisance,
both public and private, as such).
38
See William L. Prosser, Private Action for Public Nuisance, 52 VA. L. REV. 997,
998-99 (1966) (describing public nuisance as “a species of catch-all low-grade
criminal offense, consisting of an interference with the rights of the community at
large, which may include anything from the blocking of a highway to a gaming-house
or indecent exposure”).
39
See RESTATEMENT (SECOND) OF TORTS § 821B cmt. b (1979); Denise E. Antolini
& Clifford L. Rechtschaffen, Common Law Remedies: A Refresher, 38 ENVTL. L. REP.
10,114, at 10,120-21 (2008) (listing examples of circumstances in which
environmental harms have been found to be public nuisances); see also W. PAGE
KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 90, at 643-45 (5th ed.
1984) (listing wide range of factual circumstances in which courts have found public
nuisance). In contrast to private nuisance, public nuisance does not require proof of
interference with use and enjoyment of land. See RESTATEMENT (SECOND) OF TORTS §
821B cmt. h (1979); Antolini & Rechtschaffen, supra, at 10,120.
34
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circumstances is the notion of public harm: the public nuisance
doctrine addresses general harm resulting from the conduct of
others.40 Recent litigation seeking to apply public nuisance to lead
paint, handgun violence, and climate change underscores the
malleability of the doctrine.41 Although plaintiffs pursuing these cases
have struggled to overcome issues of causation, preemption,
displacement, and justiciability,42 the public nuisance doctrine remains
a viable tool for addressing new public harms in addition to the harms
to which it has typically been applied.
The public trust and public nuisance doctrines do face important
limitations in their common law forms. These limitations result from
the fact that, in applying the doctrines, judges are making decisions
with policy implications.
First, like other common law doctrines, the public trust and public
nuisance doctrines develop slowly and sporadically through individual
cases.43 This sort of lawmaking is well-suited for resolving individual
disputes but is generally an inadequate substitute for comprehensive
regulation. Statutes and regulations to protect the environment offer a
more systematic and directed approach. By themselves, however, these
sources of law are incomplete and imperfect, leaving common law
doctrines to serve as important gap-filling and corrective devices.
Second, because the public trust and public nuisance doctrines are
applied by generalist judges who often lack expertise in addressing
resource conflicts, the resulting solutions are likely to differ from
40
See Prosser, supra note 38, at 997.
See Gifford, Public Nuisance, supra note 6, at 749-74; Matthew F. Pawa, Global
Warming: The Ultimate Public Nuisance, in CREATIVE COMMON LAW STRATEGIES FOR
PROTECTING THE ENVIRONMENT 107, 107-08 (Clifford Rechtschaffen & Denise Antolini
eds., 2007); Katie J. Zoglin, Getting the Lead Out: The Potential of Public Nuisance in
Lead-Based Paint Litigation, in CREATIVE COMMON LAW STRATEGIES FOR PROTECTING THE
ENVIRONMENT, supra, at 339-40.
42
See, e.g., Am. Elec. & Power v. Connecticut, 131 S. Ct. 2527, 2537 (2011)
(holding that “the Clean Air Act and the EPA actions it authorizes displace any federal
common law right to seek abatement of carbon-dioxide emissions from fossil-fuel
fired power plants”); California v. Gen. Motors Corp., No. C06-05755, 2007 WL
2726871, at *16 (N.D. Cal. Sept. 17, 2007) (finding that common law global warming
nuisance claim presented a nonjusticiable political question); City of Chi. v. Beretta
U.S.A. Corp., 821 N.E.2d 1099, 1136-37 (Ill. 2004) (holding that lawful sale of guns
by manufacturers was too remote from resulting injury to satisfy proximate cause
requirement of public nuisance, in light of intervening criminal activity of third
parties); In re Lead Paint Litig., 924 A.2d 484, 501-02 (N.J. 2007) (rejecting
application of public nuisance in litigation against paint manufacturers based on
reasoning that hazards associated with flaking lead paint are due to poor maintenance
of premises by owners).
43
Klass, supra note 3, at 713.
41
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those that expert agencies might devise.44 Relatedly, both doctrines set
out general standards whose application in specific instances can be
uncertain. Courts prescribe the duties and limitations of the public
trust doctrine, just as they determine in public nuisance cases what
comprises a substantial and unreasonable interference with a public
right. Neither of these objections is fatal to use of the common law,
but they may warrant a preference for comprehensive regulation by
expert agencies.
Third, the wide scope that courts potentially have in applying the
public trust and public nuisance doctrines has led to criticism of their
use as anti-majoritarian.45 James Huffman contends, for example, that
expansive interpretations of common law doctrines, including public
trust and public nuisance, threaten to undermine democratic choices
made by elected officials.46 Similarly, Richard Lazarus argues that the
expansion of regulatory power to address environmental harms
through modern administrative procedures provides a better assurance
of accountability than the application of the public trust doctrine.47
These arguments correctly take note of the historical limitations of the
public trust doctrine and the importance of the administrative state
today. But they express too much confidence that without further
prodding, the political process will reflect the interests of the public at
large and regulators will be able to address environmental problems
effectively. As discussed below, the doctrines of public trust and
public nuisance are better understood as corrective responses to
political failures in the democratic process than as undemocratic or
unaccountable interventions.
C. Public Trust and Public Nuisance Doctrines as Responses to Political
Failure
The public trust and public nuisance doctrines increasingly serve as
means of addressing political failures, most commonly legislative
failures. This is an important function at a time of complex
environmental challenges, environmental policy gridlock, and
corporate dominance of legislative agendas. The public trust and
44
Id.
See, e.g., James L. Huffman, A Fish Out of Water: The Public Trust Doctrine in a
Constitutional Democracy, 19 ENVTL. L. 527, 555-56, 565-66 (1989).
46
James L. Huffman, Beware of Greens in Praise of the Common Law, 58 CASE W.
RES. L. REV. 813, 828-29 (2008); James L. Huffman, Speaking of Inconvenient Truths —
A History of the Public Trust Doctrine, 18 DUKE ENVTL. L. & POL’Y F. 1, 61-62, 102-03
(2007) [hereinafter Speaking of Inconvenient Truths].
47
Lazarus, Questioning the Public Trust Doctrine, supra note 5, at 665-88.
45
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public nuisance doctrines can help redress the inability of
environmental law to take effective action — or any action, in some
instances — on pressing problems such as climate change, toxic
substances,48 and declining fisheries.49
Under U.S. law, the public trust doctrine emerged as a bulwark
against the appropriation of public resources by private parties.50
Modern applications of the doctrine, however, have tended to reflect a
concern with the potential for democratic failure in the political
branches. Such failure might involve simple corruption on the part of
state legislatures or executive agencies, as suggested by the factual
circumstances of the pivotal public trust decision, Illinois Central
Railroad Co. v Illinois.51 In that case, the U.S. Supreme Court held that
the State of Illinois’s transfer of Lake Michigan shoreline along
Chicago’s business district to a private railroad violated the public
trust doctrine.52 The transfer, seemingly a sweetheart deal for the
railroad, produced little obvious benefit for the public.53
Democratic failure can also occur in the absence of outright
corruption, and here too, the public trust doctrine can fulfill a vital
corrective function. As Joseph Sax observes, “imperfections in the
legislative and administrative process,” including dynamics identified
by public choice theorists, can skew resource allocation decisions.54
The public trust doctrine, Sax argues, is a critical tool for protecting “a
diffuse majority” against the “undue influence” of minority interests
on the public resource decisions of legislative and administrative
48
See Lin, supra note 9, at 958-71 (discussing problem of toxic ignorance).
See L.B. Crowder et al., Resolving Mismatches in U.S. Ocean Governance, 313
SCIENCE 617, 618 (2006); Benjamin S. Halpern et al., Evaluating and Ranking the
Vulnerability of Global Marine Ecosystems to Anthropogenic Threats, 21 CONSERVATION
BIOLOGY 1301 (2007).
50
See Thompson, supra note 14, at 51 (discussing 19th century attempts by
riparian landowners to assert private control of river fisheries).
51
Ill. Cent. R.R. v. Illinois, 146 U.S. 387 (1892); see Lazarus, Questioning the
Public Trust Doctrine, supra note 5, at 656.
52
Ill. Cent., 146 U.S. at 455.
53
See id. at 451; Sax, Public Trust Doctrine in Natural Resource Law, supra note 1,
at 490. But cf. Joseph D. Kearney & Thomas W. Merrill, The Origins of the Public Trust
Doctrine: What Really Happened in Illinois Central, 71 U. CHI. L. REV. 799, 881-94
(2004) (concluding that corruption probably played a role in passing the legislation
that transferred the property, but that the legislation could also be viewed as a
reasonable means of bringing about development of the harbor).
54
Sax, Public Trust Doctrine in Natural Resource Law, supra note 1, at 509; see also
Rose, supra note 4, at 353; Sax, Public Trust Doctrine in Natural Resource Law, supra
note 1, at 495.
49
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bodies.55 Environmental concerns may especially require protection
because private concessions involving resource extraction often are
granted with limited public visibility.56 More generally, industry
groups that tend to favor weak environmental regulation can act
cohesively to overwhelm the more widespread yet diffuse preferences
of the public for greater environmental protection.57
The role of the courts in addressing democratic failures through the
public trust doctrine is, nonetheless, a constrained one. The remedy
for a public trust violation is largely procedural in that courts
generally leave the substantive determinations regarding management
of public trust resources to legislatures and executive agencies.58
Indeed, “[n]o public trust case has ever directly overturned a
legislative decision.”59 In Illinois Central, for instance, the U.S.
Supreme Court upheld the state legislature’s ability to revoke its
earlier grant of title to the submerged lands along the shore.60 And in
the public trust litigation involving Mono Lake, the California
Supreme Court made clear the State Water Board’s discretion to
consider environmental concerns in the course of reviewing Los
Angeles’s prior appropriations.61 Ultimately, the State Water Board,
and not the courts, resolved the disposition of the waters that feed
Mono Lake.62
Recent litigation has highlighted a role for public nuisance doctrine
akin to that of the public trust doctrine in responding to the failure of
legislative and regulatory processes. Public nuisance suits in relation
55
Sax, Public Trust Doctrine in Natural Resource Law, supra note 1, at 560.
Id. at 495-96. But see William D. Araiza, Democracy, Distrust, and the Public
Trust: Process-Based Constitutional Theory, the Public Trust Doctrine, and the Search for
a Substantive Environmental Value, 45 UCLA L. REV. 385, 424-29 (1997) (questioning
whether public trust doctrine is warranted in light of statutory and political attention
to environmental concerns).
57
See MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE
THEORY OF GROUPS 5-65 (1971); see also Richard J. Lazarus, Restoring What’s
Environmental About Environmental Law in the Supreme Court, 47 UCLA L. REV. 703,
744-48 (2000) (describing recurring features of environmental problems, many of
which hinder redress by law).
58
Sax, Public Trust Doctrine in Natural Resource Law, supra note 1, at 558-59.
59
Thompson, supra note 14, at 65.
60
Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 452-55 (1892).
61
Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709, 726-28 (Cal. 1983).
62
In re Amendment of the City of Los Angeles’ Water Right Licenses for Diversion
of Water From Streams Tributary to Mono Lake, Cal. State Water Resources Control
Bd., Decision No. 1631 (Cal. Water Res. Control Bd. Sept. 28, 1994),
http://www.swrcb.ca.gov/waterrights/board_decisions/adopted_orders/decisions/d1600
_d1649/wrd1631.pdf.
56
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to climate change most clearly illustrate this phenomenon. In these
cases, state attorneys general and other officials have sought
mandatory reductions in greenhouse gas emissions from utilities,
motor vehicle manufacturers, and the petroleum industry.63 The
federal government’s inaction on climate change has been the primary
catalyst for this litigation: Congress has failed to enact legislation
aimed directly at climate change,64 the George W. Bush Administration
made little effort to mandate carbon emissions reductions through
existing or proposed regulatory authority,65 and the Obama
Administration has just begun to use the Clean Air Act to regulate
carbon emissions from motor vehicles and large stationary sources.66
Admittedly, state-initiated public nuisance claims are a less than ideal
mechanism for imposing regulatory controls on a handful of polluters
where hundreds of thousands of sources are contributing to a global
pollution problem.67 But, in the absence of comprehensive regulation,
executive agency officials subject to judicial oversight are creatively
using public nuisance actions in an effort to address regulatory gaps,
prompt legislative action, encourage more environmentally
responsible corporate behavior, and raise public awareness.68
63
See, e.g., Native Vill. of Kivalina v. Exxon Mobil Corp., 663 F. Supp. 2d 863
(N.D. Cal. 2009); California v. Gen. Motors Corp., No. C06-05755, 2007 WL
2726871, at *16 (N.D. Cal. Sept. 17, 2007); Connecticut v. Am. Elec. Power Co., 406
F. Supp. 2d 265, 274 (S.D.N.Y. 2005), vacated, 582 F.3d 309 (2d Cir. 2009), reversed
and remanded, 131 S. Ct. 2527 (2011).
64
See David A. Fahrenthold & Juliet Eilperin, GOP Win Dims Prospects for Climate
Bill, but Obama Eyes Plan B Ahead of U.N. Talks, WASH. POST, Nov. 21, 2010, at A5.
65
See Michele Estrin Gilman, The President as Scientist in Chief, 45 WILLAMETTE L.
REV. 565, 570-73 (2009); Nathan Alexander Sales & Jonathan H. Adler, The Rest is
Silence: Chevron Deference, Agency Jurisdiction, and Statutory Silences, 2009 U. ILL. L.
REV. 1497, 1504.
66
See Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate
Average Fuel Economy Standards, 75 Fed. Reg. 25,324-01 (May 7, 2010) (codified at
40 C.F.R. pts. 85, 86, 600); Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31,514 (June 3, 2010) (codified at 40
C.F.R. pts. 51, 52, 70, 71); Robert B. McKinstry Jr., The Clean Air Act: A Suitable Tool
for Addressing the Challenges of Climate Change, 41 ENVTL. L. REP. 10,301, at 10,302-03
(2011).
67
Douglas A. Kysar & Benjamin Ewing, Prods and Pleas: Limited Government in an
Era of Unlimited Harm, 121 YALE L. REV. 350, 404-05 (2011).
68
Id. at 354 (suggesting that common law tort claims can serve as “prods and
pleas” that signal to other institutional actors who possess greater regulatory power
the need to attend to and act on a problem).
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PUBLIC TRUST AND PUBLIC NUISANCE DOCTRINES: DIFFERENCES
Although the public trust doctrine and the public nuisance doctrine
have similar roles in our primarily statutory legal system, differences
in their scope, function, and legal bases have various implications for
applying these doctrines to current and future environmental
challenges.
A. Scope
Perhaps the most obvious difference between public trust and public
nuisance doctrines is in their scope. Historically, the public trust
doctrine concerned “property rights in rivers, the sea, and the
seashore.”69 The core principle behind the doctrine was that the
activities tied to these resources — commerce, navigation, and fishing
— were “so intrinsically important to every citizen” and “so
particularly the gifts of nature’s bounty” that they merited special
recognition and protection as public rights.70 Thus, in Illinois Central,
the Court deemed the Chicago harbor too essential to commerce to be
privatized completely.71 The geographic scope of the public trust
doctrine has since expanded to encompass parks, wildlife, and public
lands.72 In addition, courts have applied the doctrine to advance a
wider range of purposes, including recreation and ecological
protection.73 In the leading modern cases, courts nevertheless have
continued to require that the resource in question be connected in
some way to waters.74 Holding that the public trust doctrine protects
non-navigable tributaries to navigable waterways, the California
Supreme Court declared in the Mono Lake litigation that “the core of
69
Sax, Public Trust Doctrine in Natural Resource Law, supra note 1, at 475.
Id. at 484; see also Klass, supra note 3, at 708; Lazarus, Questioning the Public
Trust Doctrine, supra note 5, at 647.
71
Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 452-55 (1892).
72
See Klass, supra note 3, at 707-08; Lazarus, Questioning the Public Trust Doctrine,
supra note 5, at 640, 649-50.
73
E.g., Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709, 719 (Cal. 1983)
(holding that public trust encompasses protection of recreational and ecological
values); Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971) (recognizing ecological
function of tidelands); Just v. Marinette Cnty., 201 N.W.2d 761, 768 (Wis. 1972)
(holding that public trust duty includes protection of wetlands for recreation and
scenic purposes); see also Robin Kundis Craig, Adapting to Climate Change: The
Potential Role of State Common-Law Public Trust Doctrines, 34 VT. L. REV. 781, 829-46
(2010) (discussing “increasing willingness of states to connect public trust principles
to environmental conservation”).
74
See Klass, supra note 3, at 712; Thompson, supra note 14, at 67.
70
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the public trust doctrine is the state’s authority as sovereign to exercise
a continuous supervision and control over the navigable waters of the
state and the lands underlying those waters.”75 Insisting on such a
connection provides a customary grounding for courts and reflects the
special value to society of particular natural resources.76 It also
suggests that the optimal management of certain resources “requires a
kind of blend of open access and exclusion rights.”77
The courts’ reluctance to expand the public trust doctrine far
beyond waterways and tidal lands has not deterred commentators
from calling for its broader application. Four decades ago, Joseph Sax
suggested that application of the procedural and substantive
protections developed in public trust cases may be “equally
appropriate in controversies involving air pollution, the dissemination
of pesticides, the location of rights of way for utilities, and strip
mining or wetland filling on private lands.”78 Others have advocated
an understanding of public trust resources that would embrace all
natural resources, including the global atmosphere, soils, and forests.79
One difficulty with adopting a broader understanding of the public
trust doctrine is the lack of a readily defensible stopping point.80 The
public trust doctrine has the potential to reach — and to lead to
restrictions on the behavior of — all parties that contribute
collectively to an ecological problem, even if the causal link of any
individual party to the problem is attenuated. This concern apparently
has not been lost on the courts, which have generally rejected
expansive interpretations of the doctrine.81
In contrast, the public nuisance doctrine is not subject to geographic
constraints analogous to those traditionally associated with the public
trust doctrine. Public nuisance encompasses pollution of land, air, and
75
Nat’l Audubon Soc’y, 658 P.2d at 712.
Thompson, supra note 14, at 68.
77
Kearney & Merrill, supra note 53, at 928-29.
78
Sax, Public Trust Doctrine in Natural Resource Law, supra note 1, at 556-57.
79
See Wood, supra note 28, at 83-87.
80
See Araiza, supra note 56, at 437 (underscoring Sax’s acknowledgement that
process-based rationale for public trust could also apply to consumer protection and
legislation affecting the poor); Thompson, supra note 14, at 58.
81
See, e.g., Golden Feather Cmty. Assn. v. Thermalito Irrigation Dist., 209 Cal.
App. 3d 1276, 1284-87 (Ct. App. 1989) (rejecting attempt to apply public trust to
nonnavigable artificial body of water); 10 E. Realty, L.L.C. v. Inc. Vill. of Valley
Stream, 854 N.Y.S.2d 461, 464 (App. Div. 2008) (declining to apply public trust
doctrine to municipally owned parking lot); Evans v. City of Johnstown, 410 N.Y.S.2d
199, 206-08 (App. Div. 1978) (refusing to apply public trust principles to atmosphere
and to nonnavigable waterway).
76
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water insofar as public interests are affected, as well as a wide range of
interferences with public health and safety.82 The primary substantive
constraint on the application of the public nuisance doctrine is the
requirement that there be interference with a public right. However,
the concept of public right is somewhat ill-defined; the Restatement
(Second) of Torts describes a public right as “one common to all
members of the general public,” as opposed to an individual right
against tortious action by others.83 Attempting to distill the mindboggling variety of situations in which courts have found a public
nuisance, the Wisconsin Supreme Court has suggested that public
nuisance involves interference “with the use of a public place or with
the activities of an entire community.”84 Given the breadth of conduct
that might fall within the scope of public nuisance doctrine, it is not
surprising that plaintiffs’ efforts to invoke the doctrine in mass
products liability cases against handgun manufacturers,85 lead paint
manufacturers,86 tobacco companies,87 and the subprime mortgage
industry88 have fueled criticism of the doctrine as lacking meaningful
boundaries.89 Nonetheless, courts’ rejection of claims in many of these
cases on issues such as causation and control of the instrumentality
causing the alleged harm offers a forceful rebuttal to concerns that
defendants could be subjected to inequitable obligations.90
Regardless of the merits of specific cases, the critical point for
purposes of the present analysis is that courts have not hesitated to
82
KEETON ET AL., supra note 39, § 90, at 643-45.
RESTATEMENT (SECOND) OF TORTS § 821B cmt. g (1979).
84
Gifford, Public Nuisance, supra note 6, at 815 (quoting Physicians Plus Ins.
Corp. v. Midwest Mut. Ins. Co., 646 N.W.2d 777, 788 (Wis. 2002)).
85
E.g., Ileto v. Glock Inc., 349 F.3d 1191 (9th Cir. 2003); City of Phila. v. Beretta
U.S.A. Corp., 277 F.3d 415 (3d Cir. 2002); Camden Cnty. Bd. of Chosen Freeholders
v. Beretta, U.S.A. Corp., 273 F.3d 536 (3d Cir. 2001); City of Chi. v. Beretta U.S.A.
Corp., 821 N.E.2d 1099 (Ill. 2004).
86
E.g., In re Lead Paint Litig., 924 A.2d 484 (N.J. 2007); Rhode Island v. Lead
Indus. Ass’n, 951 A.2d 428, 449 (R.I. 2008).
87
See Donald G. Gifford, Impersonating the Legislature: State Attorney General and
Parens Patriae Product Litigation, 49 B.C. L. REV. 913, 921-23 (2008) (discussing
tobacco public nuisance litigation).
88
City of Cleveland v. Ameriquest Mortg. Sec., Inc., 621 F. Supp. 2d 513, passim
(N.D. Ohio 2009).
89
See, e.g., Gifford, Public Nuisance, supra note 6, at 834 (contending that public
nuisance should not be a means of recovering damages from product manufacturers).
90
Kysar & Ewing, supra note 67, at 418 (“The widespread failure of public
nuisance claims in the handgun, lead paint, and subprime mortgage industry contexts
suggests that courts have means readily available to manage nuisance doctrine from
within.”).
83
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apply public nuisance to a much broader range of environmental
concerns than the public trust doctrine. Rooted in the state’s police
power, public nuisance provides a general common law option for
addressing pollution, land use, and other environmental conflicts on a
case-by-case basis. The public trust doctrine, in contrast, serves as
more of a quasi-constitutional constraint on the state’s trust
management of a narrower subclass of resources.
B. Function
The function of the public trust doctrine has varied over time. In
U.S. law, the doctrine served initially as a bar to ownership of waterrelated resources by private interests.91 In cases from the nineteenth
century, for instance, courts rejected claims by riparian landowners to
private fisheries in navigable waters.92 The doctrine subsequently
manifested itself as a restriction on the government’s ability to manage
or dispose of trust resources in a manner contrary to the public
interest.93 Thus, in Illinois Central, the doctrine functioned as an
inherent limitation on the state’s ability to grant lake-bed rights to a
private party. At the time, the doctrine served primarily as a protective
shield against the corrupt or short-sighted exercise of state authority.
More recent cases have recognized that the public trust doctrine also
can be a source of government power.94 Thus the government may
invoke the public trust doctrine in litigation against private owners of
trust resources in order to protect the public interest.95 The public
trust doctrine also can be a viable defense to claims by private
landowners that government action has resulted in a taking of their
property without just compensation.96 And, critically, the public trust
91
Thompson, supra note 14, at 50-51; see also Lazarus, Questioning the Public
Trust Doctrine, supra note 5, at 636-37.
92
See Arnold v. Mundy, 6 N.J.L. 1, passim (N.J. 1821); Carson v. Blazer, 2 Binn.
475, passim (Pa. 1810).
93
See Thompson, supra note 14, at 50-51; see also Lazarus, Questioning the Public
Trust Doctrine, supra note 5, at 637-38.
94
Lazarus, Questioning the Public Trust Doctrine, supra note 5, at 655.
95
See id., at 646; see, e.g., People ex rel. Scott v. Chi. Park Dist., 360 N.E.2d 773,
775 (Ill. 1976) (action by attorney general for declaratory judgment that conveyance
of submerged lands invalid); Bos. Waterfront Dev’t Corp. v. Commonwealth, 393
N.E.2d 356, 365-67 (Mass. 1979) (holding in proceeding to confirm title to waterfront
property that private ownership was subject to condition subsequent that property be
used for the public purpose for which it was granted); State v. Trudeau, 408 N.W.2d
337, 343 (Wis. 2006) (action by state against condominium developers and local
zoning officials).
96
See, e.g., Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1029 (1992); Michael
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doctrine can even serve as a source of affirmative government
obligations that the public may enforce.97 In the Mono Lake litigation,
for example, the California Supreme Court held that the state had not
only the authority to supervise and reconsider water allocations, but
also an “affirmative duty to take the public trust into account in the
planning and allocation of water resources.”98 Similarly, the Hawaii
Supreme Court recently decided that the public trust doctrine
obligated the state not only to include in water pollution discharge
permits any measures needed to comply with state regulations, “but
also to ensure that the prescribed measures are actually being
implemented after a thorough assessment of the possible adverse
impacts the development would have on the State’s natural
resources.”99 States ultimately retain some discretion in the exercise of
such duties, of course. Nonetheless, this affirmative aspect of the
public trust doctrine suggests an important role for public and judicial
oversight in ensuring their proper discharge.100
Whereas the public trust doctrine has been deployed by, as well as
against, the government, the public nuisance doctrine has functioned
almost exclusively as a tool of the government to enjoin private
conduct that interferes with public interests.101 At common law, only
public authorities could bring public nuisance actions, a reflection of
the doctrine’s roots in criminal proceedings.102 Today, private plaintiffs
may bring public nuisance claims, but only if they have suffered a
Blumm, Lucas’ Unlikely Legacy: The Rise of Background Principles as Categorical
Takings Defenses, 29 HARV. ENVTL. L. REV. 321, 341-44 (2005); see, e.g., W.J.F. Realty
Corp. v. State, 672 N.Y.S.2d 1007, 1008, 1012 (App. Div. 1998); Just v. Marinette
Cnty., 201 N.W.2d 761, 768-69 (Wis. 1972).
97
See Nat’l Audubon Soc’y v. Superior Court, 658 P.2d 709, 716 n.11 (Cal. 1983);
Ctr. for Biological Diversity, Inc. v. FPL Group, Inc., 83 Cal. Rptr. 3d 588, 599-601
(Ct. App. 2008).
98
Nat’l Audubon Soc’y, 658 P.2d at 728; see also Craig, supra note 73, at 829
(contending that public trust “limit[s] the government’s ability to allow further
degradation of the trust resources”).
99
Kelly v. 1250 Oceanside Partners, 140 P.3d 985, 1011 (Haw. 2006) (discussing
obligations of public trust, as found in state constitution); see also In re Water Use
Permit Applications, 9 P.3d 409, 455 (Haw. 2000) (holding that public trust compels
state to consider cumulative impacts of water diversions, implement reasonable
measures to mitigate such impacts, and follow open public processes in doing so).
100
See Kelly, 140 P.3d at 1010-11 (rejecting state’s claim of absolute discretion in
exercising public trust duties); Ctr. for Biological Diversity, 83 Cal. Rptr. 3d at 599; see
also United Plainsmen Ass’n v. N.D. State Water Conservation Comm’n, 247 N.W.2d
457, 460-61 (N.D. 1976) (holding that public trust doctrine constrains discretionary
authority of state officials to allocate vital state resources).
101
See KEETON ET AL., supra note 39, § 90, at 643.
102
See Gifford, Public Nuisance, supra note 6, at 814.
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“special injury” — an injury different in kind from the public’s general
injury.103 In most instances, public nuisance ultimately rests on the
willingness of authorities, particularly attorneys general and
prosecutors, to exercise their police powers.
The difference in how the two doctrines can be used is an important
one. Public nuisance presupposes trust in executive branch officials to
exercise the police power appropriately to protect public rights,
subject to judicial oversight. It presumes that officials will bring public
nuisance actions when circumstances warrant. It further presumes
that they will not wield their broad authority in such a way as to
repress individual freedom.104 Within this construct, the public’s role
is limited. Individual citizens may not compel the government to
enforce against public nuisances, although the public certainly can
and does bring nuisances to the government’s attention. Absent special
injury or statutory authorization to serve as private attorneys general,
members of the public may not assert public nuisance claims on their
own.105
Public trust, in contrast, recognizes the role of a wider range of
actors in protecting public trust resources. The legislative and
executive branches have not only the authority to manage trust
resources for the public good, but also the affirmative duty to do so.
Should they abuse that authority or neglect that duty, the public may
step in to enforce that duty through the courts. This ability to compel
government action to protect trust resources in the face of inaction or
even resistance by the political branches reflects a modern
understanding of the potentially important role of the public and the
courts in prompting democratic conversation and action.106
C. Legal Foundation
Finally, a comparison of the legal foundations of the public trust
doctrine and public nuisance doctrine suggests distinct legal statuses
103
See RESTATEMENT (SECOND) OF TORTS § 821C (1979); DOBBS, supra note 6, at
1335; KEETON ET AL., supra note 39, § 90, at 646; Gifford, Public Nuisance, supra note
6, at 814. See generally Denise E. Antolini, Modernizing Public Nuisance: Solving the
Paradox of the Special Injury Rule, 28 ECOLOGY L.Q. 755 (2001) (suggesting an “actual
community injury” standard to revitalize public nuisance as a broad remedy).
104
Cf. Gifford, Public Nuisance, supra note 6, at 777-78 (noting that “[t]he openended and amorphous nature of public nuisance . . . has facilitated its use as a weapon
of public officials against the exercise of civil liberties and other conduct found to be
distasteful”).
105
DOBBS, supra note 6, § 467, at 1335.
106
Cf. Kysar & Ewing, supra note 67, at 353-54.
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and, thus, differing abilities to withstand efforts to displace them. The
precise legal basis for the public trust doctrine is murky. Its roots
hearken back to Roman law, which recognized communal rights in
certain natural resources.107 The doctrine appeared in English common
law, though it was understood primarily as a right controlled by the
sovereign, subject to the navigational rights of the public.108 In early
U.S. law, the public trust concept reflected both a sovereign interest,
held by the federal and state governments, as well as a communal
interest.109 As the U.S. Supreme Court has repeatedly observed, the
scope and content of the public trust doctrine is primarily a matter of
state law.110 In some states, the doctrine has been incorporated
explicitly into the state constitution or state statutes.111 In the absence
of such explicit provisions, the public trust doctrine has been
recognized as an implicit state limitation on legislative authority to
relinquish essential sovereign powers.112
Notwithstanding the primarily state law character of the public trust
doctrine, the Illinois Central opinion hints at a federal common law or
even quasi-constitutional basis for the doctrine as well.113 The holding
of that case — that the state legislature could undo its earlier
conveyance of lake-bed without committing a taking — rested on the
premise that the legislature simply lacked the authority to make such a
conveyance.114 As the Supreme Court stated: “The State can no more
abdicate its trust over property in which the whole people are
interested, like navigable waters and soils under them . . . than it can
107
See Lazarus, Questioning the Public Trust Doctrine, supra note 5, at 633-34. But
cf. Huffman, Speaking of Inconvenient Truths, supra note 46, at 12-19 (contending that
Roman law recognized the sea and seashore as common to all in the sense that they
had not been appropriated, but that it did not guarantee an inalienable public right or
use or access).
108
See Lazarus, Questioning the Public Trust Doctrine, supra note 5, at 635;
Huffman, Speaking of Inconvenient Truths, supra note 46, at 26.
109
See Lazarus, Questioning the Public Trust Doctrine, supra note 5, at 636.
110
See, e.g., Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 285 (1997); Phillips
Petroleum Co. v. Mississippi, 484 U.S. 469, 475 (1988); see also Appleby v. City of
New York, 271 U.S. 364, 395 (1926).
111
See Klass, supra note 3, at 714-27.
112
Douglas L. Grant, Underpinnings of the Public Trust Doctrine: Lessons from
Illinois Central Railroad, 33 ARIZ. ST. L.J. 849, 854, 872-74 (2001); see also Araiza,
supra note 56, at 438 (contending that “state constitutional provisions dealing with
the environment can furnish the substantive commitment to resource conservation
that, in turn, justifies judicial application of the public trust doctrine”).
113
See Lazarus, Questioning the Public Trust Doctrine, supra note 5, at 640
(suggesting that “the tone of [Illinois Central] nearly strikes constitutional chords”).
114
Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 452-55 (1892).
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abdicate its police powers in the administration of government and the
preservation of the peace . . . .”115 The Court did not cite specific
authority for this statement, but the opinion’s broad language and the
Court’s discussion of cases from various jurisdictions other than
Illinois arguably imply a federal basis.116 Using this language as a point
of departure, various scholars have suggested several potential
theoretical foundations for the public trust doctrine rooted in federal
law. These theories, which have invoked the Commerce Clause,117 the
equal footing doctrine,118 and grants of statehood,119 support the
notion that the public trust doctrine incorporates a “federal floor” that
constrains a state’s management and disposition of public trust
resources, with the possibility of further constraints as a matter of
state law.120 Regardless of its precise basis, the public trust doctrine
functions in a quasi-constitutional way: it establishes overarching
fiduciary principles regarding trust resources that may not be
overridden by legislative or executive action.121
In a manner akin to the public trust doctrine, the public nuisance
doctrine has been described as “vaguely defined [and] poorly
understood,” and courts differ regarding the precise elements required
115
Id. at 453.
See Lazarus, Questioning the Public Trust Doctrine, supra note 5, at 639 & n.37.
But see Grant, supra note 112, at 864-66 (contending that Court’s discussion of cases
from various jurisdictions reflected an attempt to discern Illinois law).
117
See Charles F. Wilkinson, The Headwaters of the Public Trust: Some Thoughts on
the Source and Scope of the Traditional Doctrine, 19 ENVTL. L. 425, 456, 458 (1989)
(suggesting that public trust is “an implied component of the commerce clause”).
118
See Crystal S. Chase, The Illinois Central Public Trust Doctrine and Federal
Common Law: An Unconventional View, 16 HASTINGS W.-NW. J. ENVTL. L. & POL’Y 113,
140-42 (2010).
119
See Wilkinson, supra note 117, at 456, 458 (characterizing the public trust
doctrine as “the product of [implied] congressional preemption resulting from a
comprehensive legislative program [in the statehood acts] to keep the major
watercourses open and free”).
120
See Chase, supra note 118, at 150 & n.230. Joseph Sax has shied away from
characterizing public trust as constitutional in nature. See Joseph L. Sax, Liberating the
Public Trust Doctrine from Its Historical Shackles, 14 UC DAVIS L. REV. 185, 193-94
(1980) [hereinafter Liberating the Public Trust Doctrine]; Sax, Public Trust Doctrine in
Natural Resource Law, supra note 1, at 560. Nonetheless, his understanding of public
trust doctrine as a judicial restraint on undemocratic action by the political branches
and as a means of “preventing the destabilizing disappointment of expectations held
in common but without formal recognition such as title” reflect a view that the
doctrine is something more than ordinary state common law. Sax, Liberating the Public
Trust Doctrine, supra, at 188.
121
See generally Robert G. Natelson, The Constitution and the Public Trust, 52 BUFF.
L. REV. 1077 (2004) (contending that the Founders intended to impose fiduciary
standards on the federal government).
116
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for liability.122 But in contrast to the public trust doctrine, the bases for
the public nuisance doctrine are not in dispute. The public nuisance
doctrine is firmly rooted in the common law and has long been
recognized as an element of both federal law and state law.123 In an
effort to give more definite form to the doctrine, many states now
define public nuisance by statute.124 In addition, courts in some
instances have held that the enactment of comprehensive regulatory
schemes displaced common law nuisance claims.125 In this regard,
public nuisance is no different than any other common law cause of
action. The vulnerability of public nuisance to displacement does
suggest, however, that the doctrine may be a less potent weapon than
the public trust doctrine. Unlike the public nuisance doctrine, the
quasi-constitutional doctrine of public trust may not be displaced by
statute, nor may it be preempted by federal law.
CONCLUSION
Both the public trust and public nuisance doctrines can play
important roles in addressing current and future environmental
challenges, particularly in cases of regulatory inadequacies or failure.
Such is the case even though the relief available through these
doctrines in their common law forms is often less than comprehensive.
In applying these doctrines incrementally and avoiding dramatic
distortions of legal requirements that might upset settled expectations,
courts have respected the rule of law. Indeed, adjudication of these
common law claims is useful even where individual plaintiffs are
unsuccessful, as these cases can serve as a “vital source of informationgathering and intra-governmental feedback.”126 The very process of
122
Gifford, Public Nuisance, supra note 6, at 774-75, 778-86; Robert Abrams & Val
Washington, The Misunderstood Law of Public Nuisance: A Comparison with Private
Nuisance Twenty Years After Boomer, 54 ALB. L. REV. 359, 359 (1990).
123
Georgia v. Tenn. Copper Co., 206 U.S. 230, 237 (1907); HOLLY DOREMUS ET AL.,
ENVIRONMENTAL POLICY LAW: PROBLEMS, CASES, AND READINGS 57-59 (5th ed. 2008).
124
Gifford, Public Nuisance, supra note 6, at 775.
125
See, e.g., Int’l Paper v. Ouellette, 479 U.S. 481, 497 (1987) (holding that the
Clean Water Act precludes application of Vermont nuisance law against pollution
source located in New York); Milwaukee v. Illinois, 451 U.S. 304, 317-26 (1981)
(holding that the Clean Water Act preempts federal common law nuisance claims for
failure to adequately treat sewage). Most recently, the Supreme Court determined that
incipient efforts by the Environmental Protection Agency to regulate greenhouse gas
emissions under the Clean Air Act are sufficient to displace federal common law
nuisance actions seeking to compel reductions in those emissions. Am. Elec. & Power
v. Connecticut, 131 S. Ct. 2527, 2537 (2011).
126
Kysar & Ewing, supra note 67, at 375.
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deciding such claims on the merits can identify important issues and
raise their public profile, provide public articulations regarding the
matters and values at stake, and highlight shortcomings in applicable
legal regimes.127
The public trust doctrine is a potentially more powerful weapon
than the public nuisance doctrine because it is quasi-constitutional,
not subject to displacement, and more open to assertion by members
of the public. Moreover, the public trust doctrine more fully captures
the fundamental idea that government has an obligation to protect the
environment for the benefit of the public, now and into the future.
The public trust doctrine is, nonetheless, more constrained by its
common law origins, and it is likely that courts will expand its scope
only gradually from its common law core of tidal waterways and tidal
lands, if at all.
The public trust and public nuisance doctrines have many
similarities. Both are adaptable common law doctrines that protect
communal interests against individual abuse and redress failures in the
political process. Given these commonalities, Richard Lazarus suggests
that reliance on the public trust doctrine is “unnecessary.”128 Nuisance
law, in Lazarus’s view, can better achieve communal objectives than
the public trust doctrine because it has rejected the rigid propertybased rules that underlie public trust in favor of a more flexible
approach that balances individual and societal concerns.129 Such
arguments give insufficient weight to the quasi-constitutional nature
of the trust and to the role that citizens can have in enforcing trust
principles. Ultimately, we need not choose between the public trust
and public nuisance doctrines: the public trust doctrine sets out limits
to private property rights (at least with respect to trust resources),
whereas the public nuisance doctrine sets out limits in tort to freedom
of action. As long as property law and tort law continue to serve as
organizing principles for society, both doctrines will be critical in
defining and reminding the government of its role as a fiduciary and
guarantor for the interests of the public.130
127
Id. at 358-59.
Lazarus, Questioning the Public Trust Doctrine, supra note 5, at 664.
129
Id. at 663-64.
130
David A. Westbrook, Liberal Environmental Jurisprudence, 27 UC DAVIS L. REV.
619, 698-700 (1994).
128